Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 37

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 37 Migration Act 1936 (Cth) s 36(2) Minister for Immigration & Multicultural Affairs v Prathapan (1998) 156 ALR 672 Minister for Immigration & Multicultural Affairs v Thiyajarajah (1997) 151 ALR 685 Minister for Immigration & Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) SARABJIT SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S 133 of 2001 MANSFIELD J ADELAIDE 31 JANUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 133 of 2002

BETWEEN: SARABJIT SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 31 JANUARY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 133 of 2002

BETWEEN: SARABJIT SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 JANUARY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) given on 29 June 2001. The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act) made on 8 December 1999. The applicant applied for that visa on 3 September 1999, shortly after his arrival in Australia on a visitor visa. As the application was made before the extensive amendments to the Act effected by the Migration Legislation Amendment Act (No.1) 2001 (Cth) and associated legislation, operative from 2 October 2001, references to the Act are references to the Act as it stood prior to that date. 2 The applicant is a citizen of India. He is a Sikh from Punjab. He arrived in Australia on a valid Indian passport. The applicant gave evidence at his initial interview with an officer of the respondent which differed in some respects from the evidence which he provided to the Tribunal during its hearing. The Tribunal observed that his evidence was "somewhat confused and he found it difficult to articulate the reasons which he claimed had prompted him to leave India". Having explored at the hearing the difference in information provided initially by the applicant to that provided to the Tribunal, it expressed the view that the discrepancies probably reflected the difficulties in eliciting from the applicant a clear statement of the problems he claimed to have had in India. Having regard to the circumstances in which his original application for the visa was prepared, as described to it by the applicant, it preferred the applicant's evidence at the hearing as to his reasons for having left India and for fearing persecution if he were to return to India. 3 The Tribunal's reasons followed the conventional route of containing a brief description of the applicant's background, a description of the legislative framework and then a detailed analysis of his evidence, before adverting to its findings and reasons for decision. The evidence section of its reasons includes detail of the applicant's evidence and information about India and the way in which Sikhs have been treated in India, particularly in Punjab over the last decade or so. In the course of the hearing, the Tribunal put to the applicant for his comments a number of pieces of information concerning matters pertinent to his claims as expressed to the Tribunal and which appeared to present a picture inconsistent with those claims. Although it did not expressly say so, it appears that the Tribunal accepted that the applicant is a married man with two children, and that his wife and children still live in India. It also appears to have accepted that the applicant had no formal education and had worked a small farming property until his departure from India. 4 For the applicant to succeed in being eligible to be granted the visa, it was necessary for the Tribunal to be satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention (the Convention) as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). That is the criterion for a protection visa specified in s 36(2) of the Act. In practical terms, in this matter, that meant that the Tribunal had to be satisfied that the applicant is a "refugee" as that term is used in the Convention. Article 1A(2) of the Convention defines a refugee as a person who: "Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …" 5 The Tribunal dealt with each of the applicant's claims to have a well-founded fear of persecution for a Convention reason in turn. 6 The applicant claimed that he feared persecution because of his religious beliefs, as he had been deprived of the right to express his Sikh religion freely. At the hearing, the Tribunal was told that he had not had any difficulty attending his local temple. The Tribunal had regard to independent evidence also that the Indian Constitution provides for freedom of religion, and that the government respects this right in practice. It did not accept the applicant's claim that, in the past, he had been deprived of his right to freely practise his religion in India, and was not satisfied that he has a well-founded fear of being persecuted by reason of his religious beliefs if he returns to his home in Punjab. No issue about that conclusion is raised on the current application for review. 7 The applicant also claimed to have been harassed by the police over a lengthy period of time. The first indication of such harassment was that he had been arrested some five or six years ago by police in New Delhi when he was trying to go to Dubai. The Tribunal accepted that that had occurred, and that at the same time the agent who had arranged his travel was arrested. However, the Tribunal did not accept that the applicant's arrest and detention on that occasion was for a Convention reason. It drew from the applicant's evidence before the Tribunal that he was detained in connection with breaches of Indian laws of general application by the travel agent who had arranged this travel, so the Tribunal was not satisfied that he was treated differently from anyone else arrested for a breach of the same laws of general application. Again, the applicant does not on this application raise any ground of review concerning that conclusion. 8 The applicant also claimed to fear persecution by reason of political beliefs imputed to him that he was associated with, and supported, Sikh militants. He told the Tribunal that about five years ago he had received a letter of demand from the Sikh Independence Movement for 30,000 rupees, and that he had met that demand. That claim was part of a larger picture which the applicant presented of having been the subject of a demand for money by that movement, under threat of death, and that the applicant's uncle had told the local police that the applicant had supported Sikh terrorists in that way so that the local police had sought to arrest him. The Tribunal did not accept that the applicant had been forced to pay 30,000 rupees to Sikh militants. He had accepted, before the Tribunal, that very few of the militants were left in India and that they were mainly overseas. The independent evidence available to the Tribunal indicated that there was no real chance that, if the applicant returned to his home in the Punjab, he would be forced to provide assistance to members of the Sikh militant movement. The Tribunal does not explain in much detail why it did not accept the applicant's evidence on that topic. It did not make general adverse findings about his credibility, nor any specific findings adverse to his credibility on particular matters. However, the finding of fact that that claimed past event had not occurred was not the subject of any particular ground of review upon this application. It is, of course, not open to the applicant to ask the Court simply to reconsider and re-determine facts found by the Tribunal. The review by the Court is not a rehearing of the application. The Court is confined to the grounds of review available under s 476(1) of the Act. 9 The Tribunal accepted the applicant's claim that about three years ago he had been detained by the local police in his village, for the purpose of extorting money from him. The applicant acknowledged that that was the purpose of that arrest. As part of that claim the applicant also asserted that his name was kept on a list maintained by the local police as a person who could be arrested to extract money from them. Consequently, he claimed that he had been unable to live at his home for the last several years on any permanent basis. The Tribunal considered whether that extortion was for a Convention reason, or partly for a Convention reason. It was not satisfied that the police were motivated by anyone or more of the five Convention reasons, and found that they were simply extracting money from a suitable victim. 10 The Tribunal rejected the claim that, as a result, the applicant had a well-founded fear of persecution for a Convention reason on two grounds. Firstly, it did not accept that the applicant's fear of arrest in the future for this purpose, if he were to return to Punjab, might be for a Convention reason. Secondly, it did not consider that, even if that conduct was undertaken by local authorities, in effect acting as private extortioners, it was encouraged or condoned by the Indian government or that the Indian government was unwilling or unable to protect the applicant from such conduct. It was accepted on behalf of the applicant that such conduct, if it occurs, is not conduct engaged in by the Indian government or its instrumentalities but is in the nature of private conduct by persons in authority. 11 Counsel for the applicant complained about only the last of those alternative and complementary conclusions of the Tribunal. As noted, no attack was made in respect of the findings of the Tribunal that the applicant did not have a well-founded fear of persecution by reason of any claimed suppression of his religious beliefs or the practise of those religious beliefs, nor in respect of his claim to have been targeted by Sikh terrorists for money, nor that the authorities had therefore undertaken a process of arresting and harassing him, nor that specifically he had been detained by police for extortion purposes for a Convention reason. 12 The applicant's contention of error on the part of the Tribunal was that the Tribunal had erred in law in the following passage: "In considering whether the Government of an applicant's country of nationality is powerless to protect an applicant from private persecution, the test is not whether the country of nationality is unable to 'guarantee' protection against persecution. Rather, the question is whether the Government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals and whether it will provide the applicant with a level of protection sufficient to remove a real chance of persecution in the country in question by the private group concerned: see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 681 per Lindgren J (with whom Burchett and Whitlam JJ agreed)." The submission was made that the Tribunal had erred in identifying a two pronged question to resolve whether, in the case of "private persecution", there could be persecution because the government of the country in which that conduct takes place either is complicit in or covertly supports or acquiesces in the persecution in question, or is unable to protect its nationals from that conduct. 13 In my judgment the contention of legal error must fail. In the first place, I consider that it must fail because the applicant has not sought to challenge, on this application, the conclusion of the Tribunal that his fear that he will be arrested by local police acting "privately" for the purpose of extracting money from him "does not bear the requisite connection with one of the five Convention reasons". The Tribunal's subsequent consideration whether the Indian government is unable to offer adequate protection in respect of that behaviour is an additional, but independent, reason for rejecting that part of the applicant's claim. 14 The finding of the Tribunal that the applicant's fear of being the subject of extortion threats is not for a Convention reason amounts to a finding that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political, social group, or his political opinion. His fear, even if it exists, has been found not to be one which is related to a Convention reason. Consequently, it follows that he could not, by reason of that fear, be a "refugee" as defined in Article 1A(2) of the Convention and in turn could not be a person to whom Australia has protection obligations under the Convention, even if that fear had a sound objective foundation on the part of the applicant that he will be arrested for the purposes of having money extorted from him by the local authorities. 15 The Tribunal then provided a separate and independent reason for rejecting that part of the applicant's claim. In the passage quoted above, it is contended that the Tribunal erred by asking the question in two stages, and in the first question by failing to ask whether the state concerned is unable to offer meaningful or adequate or effective protection against private unlawful or "persecutory" conduct. Even if that passage in the Tribunal's reasons represents the reason for rejecting that part of the applicant's claim, I do not consider that it is erroneous. The contention is that the Tribunal erred by expressing the question as being: "Whether the government of the country of nationality will extend to the applicant the same degree of protection as that accorded to any of its other nationals ..." It is contended that the Tribunal should have asked whether that government is unable to offer meaningful or adequate or effective protection. In my view the Tribunal has asked that question in any event. It has done so in the second part of the composite question in the passage set out in [12] above, by addressing whether the Indian government will provide the applicant with a level of protection sufficient to remove a real chance of persecution in India by the private group concerned. That formulation of the relevant question is one expressly adopted by Lindgren J (with whom Burchett and Whitlam JJ agreed) in Minister for Immigration & Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 681. Lindgren J in turn specifically adopted the expression of that question as expressed in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 per von Doussa J at 706 – 707. His Honour's reasons for decision were agreed to by Moore and Sackville JJ. 16 The essence of the definition of refugee in the Convention is the failure of the political relationship between the citizen and the government of the country of which that person is a citizen (see Grahl-Madsen "The Status of Refugees in International Law", 1966, at 97 – 101). Most frequently, that relationship breaks down because the authorities of the country of nationality are themselves the persecutors, and so will not protect the national of the country concerned. As was pointed out in Thiyagarajah and Prathapan, there are also circumstances where the country of nationality has the capacity to protect, but is unwilling to protect its nationals from persecutory conduct of private groups or individuals, and circumstances where country of nationality lacks the capacity to protect its nationals from persecutory conduct on the part of individuals or private groups. It is that category of case where the country of nationality lacks the capacity to protect its nationals from persecutory conduct on the part of individuals or private groups to which the present case submissions are directed. In that context, it is accepted that for the purposes of determining whether the relationship between it and certain of its nationals has broken down, the country of nationality is not required to guarantee the safety of its nationals. See the discussion in Hathaway, The Law of Refugee Status, 1991, Butterworths at 127 – 132 and the discussion by Lindgren J in Prathapan at 681 – 682 as to what evidence could demonstrate the ineffectuality of state protection. In Prathapan, Lindgren J at 681 agreed with the approach in Thiyagarajah to determining whether the state could provide "meaningful or adequate or effective protection" (the formulation of the applicant) from private persecutory conduct. That approach asks the question asking the question whether there is a real chance that the government authorities would not extend the applicant: "the degree of protection which would be extended to … nationals [of the relevant country] and would not provide a level of protection sufficient to remove a real chance of persecution …" in the country of nationality from the private group. That passage was taken by his Honour from the judgment of von Doussa J in Thiyagarajah at 707. Counsel for the applicant accepted that question, which equates to the second limb of the formulation by the Tribunal in the passage referred to in [12] above properly addresses the issue. In my view the formulation does properly address the issue of inability on the part of the Indian government to protect the applicant from private "persecutory" conduct. It is a view adopted by two separate Full Courts of this Court. The Tribunal, in my judgment, can therefore, be seen to have asked the correct question. It said: "However, I consider that, if the Applicant were to be threatened in future with arrest for the purpose of extracting money from him, the Indian Government would provide him with the same level of protection as any other Indian citizen and with a level of protection sufficient to remove a real chance of his being persecuted by the police in his village in this fashion." 17 In my judgment it was appropriate for the Tribunal also to ask the question whether the Indian government would extend to the applicant the same degree of protection as that accorded to any of its other nationals. If it were not prepared to do so, that fact might demonstrate an unwillingness on the part of the Indian government in relation to the applicant, perhaps by reason of his ethnicity or his religion or for some other Convention related reason, not to offer him such protection. Such selective withholding of protection for a Convention reason might lead to the applicant being found to be a refugee, even if the private persecutory conduct were not itself directed to the applicant for a Convention reason: see e.g. Minister for Immigration & Multicultural Affairs v Y (Davies J, 15 May 1998, unreported). It is unnecessary to further explore that question. It is sufficient to observe that, in my judgment, the Tribunal did not err in considering the question whether the Indian government would extend to the applicant that degree of protection accorded to its other nationals, and upon an affirmative answer to that question to then address whether that level of protection was or is "adequate or effective or meaningful". As I have observed, the way in which the second limb of the composite question formulated by the Tribunal has been approached is consistent with the approach of the Full Courts both in Thiyagarajah and in Prathapan. The second limb of that composite question is not one of which the applicant is critical. 18 For those reasons, in my judgment the Tribunal is not shown to have erred in not being satisfied that there is a real chance that the applicant's life would be threatened or that he would otherwise be persecuted for a Convention reason if he now returns to his home in Punjab. Consequently, it did not err in law in not being satisfied that the applicant does not have a well-founded fear of being persecuted for a Convention reason if he returns to India. It was therefore not in error in not being satisfied that the applicant is not a person to whom Australia has protection obligations under the Convention, so that he did not satisfy the criterion set out in s 36(2) of the Act for the grant of the visa. As noted earlier, the Tribunal also rejected the applicant's claim for the independent reason that any conduct of criminal gangs towards the applicant would not be for a Convention reason, so any fear of such conduct which he held would not be a well-founded fear of being persecuted for a Convention reason. The applicant did not challenge that conclusion. The application, in that circumstance, must fail in any event. 19 In my view the application should be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.